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Public v Private
Interests.
As the debate continues in the US about
future media industry regulation and the recording industry takes
increasingly harsh legal action over the downloading of songs and
Internet broadcasters grapple with new digital copyright laws, it
seems to us that the issue at the heart of the matter in all these
cases -that of public versus private interests - is worthy of an
overall examination not just in terms of the separate segments we
have already looked at (RNW February
2000 Comment on Whose Spectrum; RNW
February 2002 Comment on the effects of royalty charges
on Streaming ; and RNW February
2003 Comment on Copyright for the Future).
We put them all together because in essence they are all facets
of the same issue - namely a right to exploit a resource that is
regulated by a society so as to strike a balance that overall ends
up in the public interest.
When the airwaves are the resource
most societies think it reasonable to insist on some public return,
sometimes via the regulation of content and sometimes simply a financial
return for the right to use the resource; the first would apply
to most broadcasters, the latter to such uses as mobile phones.
The situation is parallel for copyright and patents where the balance
struck is in theory to maximise public return through incentives
to innovation through limited periods through which there are returns
for the innovation.
In all cases, it is important to strike a fair balance; at the moment
we would argue, the public is losing out and could lose even more
seriously.
The balance to be struck.
The balance that has to be struck in considering
the issues of media regulation and copyright go far beyond
the media.
They relate to the very heart of a functioning democracy when
it comes to sources of information and the overall financial
and physical health of a community when it comes to issues
such as copyright and patents: Indeed in some cases the end
product is literally a matter of life and death.
There may be a direct or an indirect link
in this --for instance irresponsible broadcasting can lead
to assault on or murder of people as happened in Rwanda where
radio broadcasts incited such murder. In other areas the link
is more direct - we suggest, a good case could be made for
considering the current system allied with the lobbying power
of the big drug companies is a serious factor in contributing
to - actively via charges for available drugs, or more passively
through areas that are not researched - the deaths of millions
of people a year round the world.
Whether that argument can be sustained or not, it is a corruption
should financial interests be able to control the debate or
legislation and we fear there is too much of a case to be
made of such corruption existing: Certainly, were almost any
US politician to be judged as Pompeia was, we suspect Caesar
would be ordering a scourging rather than a divorce (If you
can come up with names above suspicion, please e-mail us and
we'll be happy to add a footnote to this page).
This being so, we consider that the absence of mainstream
broadcasters cover of issues of media regulation in the US
at the moment is either a serious breach of the implicit bargain
in allowing the broadcasters to make financial returns from
the airwaves or a reason to so change the regulatory framework
as to ensure that all broadcasters have to contribute in one
form or another to providing editorial cover of important
issues not just those items that interest people (as opposed
to affecting their interests).
Let us suppose for a moment that our fears are totally misplaced
and that the extensions to copyright that have been made, the
way in which patent law is currently applied, the pressures from
the World Trade Organisation (WTO) for countries
such as India to clamp down on the production of generic drugs,
and further media deregulation are all positives for communities
as a whole around the world. If that is so, where should we go?
We would suggest guidance could be taken from the very legislation
that is currently forcing a re-examination of US media regulation.
Every two year, according to the US Congress, it is reasonable
that all regulations should be reviewed and each rule justified
or it should fall.
We think the two-year period is too disruptive but the principle
does seem to have a lot going for it. We, however, think the process
should be a two-way one.
Our proposal would therefore be that every five years public hearings
should be held to determine whether on the criteria of overall
benefit, an existing law should be changed but that industries
should be under as much pressure to justify rules that benefit
them as regulators are to justify their regulations.
The aim behind such a proceeding would be to ensure a proper balance
of interests is maintained in changing circumstances and to do
this, it would be necessary to ensure that the power of vested
interests and money are not allowed to squeeze out less powerful
or well-financed points of view.
Although on the surface a regular re-evaluation
of benefits of a law as suggested above might seem not that
big a deal - and presumably the same was thought when the
FCC was mandated to carry out a biennial review of its regulations
- we feel it could be a truly revolutionary change in many
businesses.
Let us suppose, for example that the book publishing, software,
or recording industries have to justify current copyright
laws but a counter-argument is made based on a benchmark of
the period within which 75% of the books/software/recordings
that have been put on the market become unavailable and stay
unavailable.
Let us further, for argument, set this period at five years
(a quite reasonable period for the initial sales that make
up the bulk of most of the income related to such items) thus
leading to a situation where these items are effectively made
unavailable to the public. On this basis it would seem a reasonable
position to argue that, rather than benefiting society or
authors, the current copyright law works to their detriment.
The logic would thus be that copyright should end five years
after publication ceases, albeit for example any public library
royalties paid (as is the law in some countries), could still
continue to be paid to the author.
With modern technology it should then be possible to set up
a suitable world library web site and insist that the publisher
provides the information to allow the book/software or music
to be posted on the Internet by a relevant government body
for free non-commercial use (Providing a book in electronic
form as well as a hard copy to a national library would nowadays
be a reasonable requirement of any publisher).
The same principle could easily be applied in other areas
- drug companies whose spending on marketing had leapt and
who had merely updated existing drugs and could thus not justify
their retention would lose patent rights on the original thus
permitting cheap generics to the vast benefit of the world
in general; software manufactures who stopped supplying a
product would have to put it in the public domain and retain
copyright only on their latest version (which people would
no longer be forced to use to the same degree) and broadcasters
who lost the case where it was shown that in a specific market
too much concentration had been to the detriment of the public
would automatically see some of their licences revoked.
We would not even begin to argue that we had all the answers
but do feel that the debate is necessary and is currently
not getting the attention it deserves.
We also suspect to a large degree that this is because of
the vested financial interests of many current businesses,
that quite a number of them through the way they lobby corrupt
politicians to varying degrees, and that it is to the longer-term
detriment of both societies and businesses.
The question arises therefore of what you think? Please E-mail
your comments.
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